SCFF Blog

Aileen McHarg: A Tale of Two Constitutions?

Posted on December 16 2013

Last week, I spent two days in London, accompanying a group of Constitutional Law students on a trip to the Westminster Parliament, the Supreme Court and the Scotland Office. The trip was part of a final year research project shadowing the House of Commons Political and Constitutional Reform Committee’s Inquiry into The Constitutional Role of the Judiciary if there were a Codified Constitution. The students had extraordinarily privileged access to ministers, MPs and peers, to Supreme Court justices, and to leading academics and members of the Scots and English Bars. It was a hugely valuable and enjoyable experience for students and their teachers alike.

However, what struck me very forcibly while I was in London was the disconnect between constitutional debates at Westminster and those in which we are currently engaged in Scotland. Whilst the Political and Constitutional Reform Committee was discussing the implications of a written constitution which most people to whom we spoke regarded as wholly hypothetical, here in Scotland we are facing the real prospect of constitutional codification in the event of a yes vote in next year’s referendum. Given the state of the opinion polls, it may be unlikely that this will in fact happen. But the important point is that, unlike for the UK, there are conceivable circumstances in which Scotland could soon have written constitution. Nevertheless, the Scottish situation appears to have played no part in the Committee’s inquiry, nor does there seem to be much awareness of the fact that the judiciary already plays a strong constitutional role in relation to the Scottish Parliament and other devolved legislatures.

We see a similar constitutional disconnect when it comes to the European Union. While all the talk in Scotland is of whether we could remain a member of the EU in the event of independence, Westminster is currently debating a Bill (The European Union (Referendum) Bill 2013-14) which will pave the way for a referendum on whether the UK should remain a member.

Of course, the independence referendum and its implications have not been wholly ignored at Westminster. The Scottish Affairs Committee has published a steady stream of reports on what it insists in calling ‘separation’ for Scotland, and on 5 December the House of Lords held a short debate on the Scottish Government’s independence White Paper, in which various speakers called for a full debate and/or the establishment of a joint Parliamentary committee to examine the White Paper fully.

The tone of these interventions from Westminster is, however, almost unremittingly hostile to independence. For most Westminster politicians, the idea of independence for Scotland would appear to be so preposterous that only a fraud or a fool could support it. For instance, in a report published shortly before the White Paper, the (notoriously partisan) Scottish Affairs Committee came close to accusing the Scottish Government of lying: “The Committee believes that the present Scottish administration, in relation to separation, is strongly motivated to present a selective and biased account of the facts.” (at para 11) Similarly, in the recent House of Lords debate, Lord Forsyth of Drumlean gleefully related the fact that the title of the White Paper – Scotland’s Future –is an anagram of “fraudulent costs” (at col 397). For Lord Foulkes of Cumnock, the White Paper was “650 pages of continuous fiction” (at col 400), while for Lord Steel of Aikwood it was a “bogus prospectus of a bogus independence” (at col 401). The only note of dissent in the debate came from Lord Purvis of Tweed who, while not in favour of independence, nevertheless considered that the UK was in need of reform.

It is easy to dismiss this kind of stuff as just good political knockabout. And it might also be argued that, if the independence debate is not taken more seriously at Westminster, it is the fault of the Scottish Government for insisting that it is a matter for the people of Scotland alone (indeed, even at Westminster, few non-Scots voices are heard). Yet, how could it be otherwise? While independence for Scotland undeniably has implications for the United Kingdom as a whole, and the terms of independence must assuredly be negotiated, as a matter of principle the right of a minority to seek self-determination cannot be dependent on the will of the majority. More pragmatically, the tone of the Westminster debates indicates there would be no possibility of the independence case receiving a fair hearing.

In fact, the tone of the debate at Westminster is not merely distasteful but, by failing to do justice to the seriousness of the debate in Scotland, or to make the positive case for the union that undoubtedly exists (see, eg, Jim Gallagher’s speech at Glasgow University in October), it seems to me to pose a threat to the continuation of the UK – perhaps not in the short term, but taking a longer view. The degree of constitutional disconnect between Scotland and the rest of the UK, as represented by Westminster, contributes to a growing sense that these are two separate polities with different constitutional trajectories. While voters in Scotland may well conclude that, for now, remaining in the union is the less risky of the two constitutional futures on offer, this looks less like being a ringing endorsement of the union than a pragmatic – and therefore contingent – calculation.

I may, of course, be wrong. Once the referendum is over and if (when?) the no side prevails, these constitutional trajectories may reconverge in a mutual commitment to a reconfigured union. For instance, the Political and Constitutional Reform Committee has called for a constitutional convention to be set up after the referendum to consider the relationship between the union and its constituent parts. Gordon Brown has also recently advocated the adoption of a written constitution which would guarantee the powers of the Scottish Parliament. There is no reason in principle why such a constitutional settlement could not accommodate a diversity of constitutional visions, both institutional and substantive. Equally, it could accommodate multiple polities, where people have multiple political identities and owe multiple political allegiances, so long as there is mutual commitment to the union and mutual toleration of diversity.

It is, however, precisely that mutual commitment and toleration that is in question here. The latest British Social Attitudes Survey showed that, in 2012, while some 65% of those living in Scotland had some form of dual Scottish and British identity, if forced to choose between them, 69% opted for a Scottish identity, while only 20% chose a British identity – the latter figure having been in long-term decline since 1979 when it stood at 40%. In this context, it is highly problematic that Westminster politicians prefer to disparage Scots’ aspirations for greater autonomy than to consider in a positive way how these might be accommodated.

In such an atmosphere of weak commitment to the union and intolerance of diversity, the prospects for a UK-wide constitutional settlement appear wholly unrealistic – more likely further to expose rather than to resolve the deep constitutional divisions between the constituent parts of the UK. The hostility to the idea of a UK Bill of Rights from Scotland, Wales and Northern Ireland provides a foretaste of what would be likely to occur (Commission on a Bill of Rights, A UK Bill of Rights: the Choice Before Us, ch 9). Much more probable is some further piecemeal adjustment of Scotland’s governance arrangements, which leaves their asymmetries under-theorised and their underlying tensions intact, if not more pronounced. By failing to ask the fundamental questions about the relationship between the UK and its constituent parts, the union may be able to muddle through for a while longer. However, unless and until these questions are satisfactorily resolved, Scotland’s place in the union will continue to be uncertain.

Aileen McHarg is Professor of Public Law at the University of Strathclyde